R v Fakatene [2022] TOSC 36; CR 179 of 2021 (18 May 2022)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 179 of 2021

REX

-v-
Mafi Fatongiatau FAKATENE

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. T. Kafa for the Prosecution
Mr. S. Tu’utufaiva for the Defendant
Date of Sentence: 18 May 2022

1. The defendant, Mr. Mafi Fakatene faced an indictment of two counts. Count 1, grievous bodily harm. The allegation being that he wounded Mr. Sio Vaka by cutting his arm with a machete on 19^th August 2021.
2. Count 2, an allegation of common assault on the same day, in that he also wounded Mr. Sio Vaka’s shoulder during the same attack.
3. The defendant had on arraignment pleaded guilty to count 2.
4. The trial on count 1 commenced on 10^th January 2021.
5. The complainant, Mr. Vaka gave his evidence in chief and was cross-examined the same day.
6. The following day, when the trial re-commenced, Mr. Vaka pleaded guilty to the single count.
7. He now stands to be sentenced for this attack.
8. It was after lunch on 19^th August 2021 that Mr. Sio Vaka woke up. He had been drinking kava the night before. He stated that heard the noise of a disturbance outside and went to the veranda of his house in Fua’amotu, he saw the defendant, just outside the property. He resides there with his parents, his sister and her children as well as his wife and their two children.
9. The Crown’s case was that Mr. Vaka had attended the address. He was armed with a machete, he banged it on the railings of the property and threatened the complainant’s parents.
10. Mr. Fakatene was already injured to his head and blood was coming down his face. He continued to shout and curse.
11. Being aggressive and threatening the complainant threw a rock at the defendant to try and get him to back off, there was a coming together of both parties outside the property and a struggle that saw the defendant drop the machete and recover it before the complainant slipped and was struck to each arm.
12. The injury in count 1 was a wound on the top of the outer aspect right arm; that cut to the bone that caused the lateral head of the triceps brachii to be severed.
13. Count 2, a slash to his left shoulder that left a cut about 3 inches in length but with no severe injury.
14. Mr. Vaka was taken to hospital and treated there by Dr. Latu the evening 19^th August 2021. He was taken to the operating theatre and the wound repaired. No major nerves or blood vessels had been damaged. Nor had the bone been fractured.
15. The injury being as severe as it was left him vulnerable to an infection of the bone and he was immediately treated with antibiotics.
16. He was discharged on 23^rd August 2021 and given a follow-up appointment as well as a physiotherapy appointment.
17. On hearing the evidence of Mr. Vaka it was immediately apparent to me that there was more to this allegation than the complainant had let on.
18. Firstly he gave evidence that as he came outside on waking up, his father had chased back the youths that lived with Mr. Vaka, so that they did not injure the defendant. This of itself was not consistent with the allegation.
19. In fact, during cross-examination Mr. Vaka conceded that before the defendant had come to outside the property where he lived, he had been in the graveyard next door and a bottle and a hammer had been thrown at him.
20. He was also forced to concede there was a point during the confrontation with the defendant whereby one of the younger relatives he lives with had thrown him an iron pipe and he had armed himself with that, though he stated he dropped it immediately. And then later stated he could not remember everything that happened.
21. Mr. Vaka had accepted in evidence in chief that they came together, he and Mr. Fakatene outside the property, each moving towards the other.
22. Given what happened next, this was very much a confrontation, since Mr. Vaka armed himself with a rock the size of his hand and threw it, he claimed to the feet of Mr. Fakatene.
23. But he accepted that shortly thereafter there was another thrown. This was taken from the verge outside the house. He indicated with his hands it was some 45 cm’s or so in length and perhaps 15 to 20 cm high. It was so large that it was placed on the verge to stop cars driving there.
24. It was this that was thrown at Mr. Fakatene and it struck him and injured his left elbow.
25. The machete was knocked from his hands and he was chased away.
26. In due course the defendant was arrested and interviewed on 24^th August 2021 at 1138 hrs by police constable Ula.
27. He was asked about what had happened on 19^th and stated “I was drunk and I was still hurt with what happened in an earlier incident and also our drunk relationship.”
28. He stated he was too drunk to know where the machete had come from and later expanded on the phrase “drunk relationship.” Explaining “When we are drunk, we fight. Whether it is me getting drunk or them, we fight.”
29. The “earlier incident” it transpired was when Mr. Vaka had been acquitted of a stabbing.
30. Analysing all of this I conclude the following:
31. Mr. Vaka and Mr. Fakatene had a long simmering animosity that was punctuated by outbursts of violence.
32. On the day in question Mr. Fakatene was drunk and he had come armed with a machete to the vicinity of the home of Sio Vaka.
33. There were aggressive acts towards Mr. Fakatene; a bottle and a hammer had been thrown at him while he was in the neighbouring grave yard, it is not clear by whom, but from people in Sio Vaka’s residence.
34. This must have been at a time when Mr. Vaka was already awake. I conclude Mr. Vaka’s original version of waking to the noise of the disturbance with Mr. Fakatene already outside the property was untruthful.
35. Certainly Mr. Vaka’s demeanour in giving his evidence, hunched up and seemingly unforthcoming, tended to suggest he was not being entirely frank.
36. Mr. Fakatene had them come from the area of the grave yard to outside the front of Mr. Vaka’s property and the fight that ensued consisted of Mr. Vaka at some point armed with a metal pipe, though apparently not striking out with it, but using the rocks as weapon as noted above.
37. Plainly Mr. Vaka was a willing participant and Mr. Fakatene went there armed with a machete to carry on their feud.

Victim impact statement

38. A victim impact statement dated 31^st January 2022 has been received.
39. At paragraph 2, Mr. Vaka complained of aches in the right side of his body, that it can be unbearable and that it leads to sleepless nights.
40. I note that in his evidence he stated that he was free of pain unless he took a knock.
41. In both his evidence and victim impact statement he described a loss of strength in that arm.
42. In the victim impact statement Mr. Vaka then went on to set out that he wished the court to be lenient with the defendant.
43. He also explained the reasons why his evidence in cross-examination had departed from his witness statement, stating that he had not recalled all those details when examined in chief.
44. There then follows a concluding section where Dr. Latu was asked to consider different scenarios concerning the after effects that Mr. Vaka complained of.
45. One thing that was quite clear is that Mr. Vaka had not recently returned to see the doctor so as to be examined and that some of what the doctor commented on was his giving different possibilities as to why Mr. Vaka had the pain he complained of.
46. Because Mr. Vaka has given two conflicting versions of the after effects of the attack and has not been examined by a doctor recently, I am not able to accept what he says about the on-going pain he claims to suffer.
47. Plainly though the injury he received was serious, requiring surgery to repair the damage and time for the wound to heal. It also has loss in strength to that arm; though whether that will be permanent is unknown.

Crown’s Submissions

48. I have considered the Crown’s submissions on sentence.
49. Is has been argued that the starting point should be on count 1; 5 years and a reduction of up to a year for his lack of previous convictions and his late plea and a portion of that suspended.
50. Count 2; it is submitted 3 months is the correct starting point.
51. I will analyse what the comparable sentences lead me to conclude is the correct starting point and then what credit can properly be given. It is with this all in mind I consider how to approach sentence.
52. Firstly I will consider what the correct starting point is for an offence of the kind in count 1.

Maximum sentence

53. The maximum penalty for causing grievous bodily harm is 10 years.

Comparable sentences

54. Rex v Mafi, CR32/2013, causing grievous bodily harm, a machete attack to the shoulder and head that caused the victim to loose much blood, but without serious permanent injury, Cato J . He adopted a starting point of 6 ½ years. That was reduced 2 years for mitigation and a further 18 months for medical reasons.
55. Tupou v Rex, AC 16 of 2018 (CR97/2018), a machete attack, causing grievous bodily harm where the victim received multiple lacerations to left arm, forearm and hand. There was a fracture to the ulnar with cuts to nerve and artery and tendon damage for three fingers. The injuries required two major operations. The prognosis was a degree of permanent chronic arthritis and limited movement to two fingers in the victim’s left hand. A starting point of 6 ½ years was adopted there, adjusted in the overall sentence, taking into account youth and guilty plea.
56. Rex v ‘Aisake, CR19/2019, another offence of causing grievous bodily harm with a machete a 13 cm depressed skull fracture that required an emergency craniotomy and elevation to relieve the pressure on the brain. Paulsen LCJ.
57. R v Fakaanga, CR172/2021; 6^th May 2022, in this case the defendant changed his plea at trial, after the close of the Crown’s evidence. LCJ Whitten QC imposed a starting point of 7 ½ year’s imprisonment where the defendant attacked his victim with a machete, striking towards his head; a blow that was blocked by the victim causing the loss of his hand and being hospitalised for what was described as being two to three months; with inevitable consequential bills for his treatment and the loss of his employment because of the permanent injury. That sentence was reduced by 6 months to 7 years and the final year suspended for two years on conditions.
58. I bear in mind Cato J’s remarks in Rex v Mafi, [16] :

“The use of a machete which is a potentially lethal weapon as an instrument of violence must be denounced.”

59. The Court of Appeal in Tupou v Rex stressed that;

“A machete is an inherently dangerous weapon, particularly in the hands of a drunken offender.”

60. They confirmed the starting point of 6 ½ years in that case was within the correct range for the offending, given the use of that weapon.
61. I therefore conclude that a starting point of 6 ½ years is appropriate in this case. It was a serious injury caused with the use of a weapon and I take this into account, and significantly the type of weapon, when fixing the starting point.
62. I have then gone on to consider the New Zealand approach in situations where the victim’s actions contributed to the offending, as set out in Hall’s Sentencing (NZ) 1.5.7 (d); R v Taueki CrA188 (1) .001.
63. I also take into account that the defendant had attended the vicinity of the victim’s home, drunk and armed with a machete.
64. But there must be some allowance for his then being goaded by the victim’s associates, when a bottle and hammer were thrown at him. Also, the victim engaging in the altercation so provoking an out breaks of serious violence.
65. I therefore consider that from that starting point there should be a deduction of 6 months, therefore 6 years’ imprisonment.

Common assault

Maximum sentence

66. The maximum sentence is a fine not in excess of $5,000 or a sentence up to a year in prison or both.

Comparable sentences

67. R v Fate & ors [2021] CR 317 of 2020. Lord Chief Justice Whitten QC imposed a sentence of 4 months imprisonment upon Suliana Fate for an offence of common assault. The victim was hit to the head with a stick by Miss Fate causing him to lose consciousness.
68. The aggravating features of the instant case are (i) it involved the use of a weapon.
69. In Mr. Fakatene’s case I consider that the laceration to the left shoulder, albeit superficial, because of the use of the weapon, merits a sentence of 4 months’ imprisonment.

Pre-sentence report

70. The report dated 11^th May 2022 has drawn attention to the facts the defendant is young, he had a good education and attended the University of the South Pacific taking courses in Physics, Chemistry and Mathematics.
71. He appears to have mixed with the wrong peer group and this has caused him to be diverted from the good start he has made in life.
72. The author of the report stresses that he is “a good young man with a bright mind and a talented character.”

The trial and discount for guilty plea.

73. The trial was in fact no more than a Newton Hearing; R v Newton (1982) 77 CA 13.
74. I fully accept that the defendant had to challenge the Crown’s case.
75. I conclude that I can treat the guilty plea as being a timely one in those circumstances it coming after the complainant’s cross-examination and the ground he had conceded and before any further evidence was called.
76. I therefore conclude that in all the circumstances I can treat this akin to a guilty plea at arraignment and then, from the defence point of view, a successful Newton hearing, so there would be no loss of credit. What that amounts to in this case is that the maximum discount of 30 % remains intact.
77. That reduces the sentence to one of 4 years.

Concurrent or consecutive sentences

78. Following the observations in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 I consider the questions of concurrent sentences or concurrent and then turn to totality.
79. As observed in Hokafonu v Rex [2003] TOCA 3 offences that are related should normally attract concurrent terms.
80. That being so I conclude the proper approach is for the 4 months sentence for the common assault should be concurrent with his sentence on count 1.

Suspension

81. In considering the principles set out in Mo’unga v R (1998) TLR 154. I bear in mind the words of their Lordships in R v Tupou when they considered the correct length of suspension when saying :

“Offenders inflicting serious injury with a weapon must ordinarily expect to serve a term of imprisonment. That is particularly so given the prevalence and availability of machetes.”

82. In that case factors identified in Mo’unga were found to have been capable of being dealt with by the trial Judge fixing the sentence’s length as well as the amount suspended.
83. Denunciation and deterrence are both important sentencing values.
84. Yet so as not to produce a sentence unduly lenient, whilst acknowledging the defendant’s youth and hope for rehabilitation, as well as the positive comments in the pre-sentence report, I conclude the last 12 months can properly be suspended for a period of 2 years on the following conditions :
    1. Not to commit any offence punishable by imprisonment;
    2. Report to the probation service within 48 hours of his release;
    3. Be placed on probation, and
    4. Complete a course on alcohol awareness and life skills as may be directed by his probation officer.

Total sentence

85. 4 years’ imprisonment, the last 12 months suspended on conditions as above.
86. His sentence is to commence from the date of his first remand, which was 28^th October 2021.
    

NUKU’ALOFA N. J. Cooper

18 March 2022 J U D G E